Federal Manager's Daily Report

The Office of Special Counsel is seeking the reversal of two decisions involving DoD employees that it considers overly restrictive of whistleblower protections.

In one case, the MSPB had rejected an appeal on grounds that the employee had not first exhausted his “administrative remedies”–specifically, that he had not provided to the OSC the “precise” details of his disclosures, including exact dates and all recipients. In that case, pending before the Ninth Circuit federal appeals court, OSC argues that such a requirement would run counter to the law’s intent to provide broad protections, and that employees at that stage commonly are not represented by attorneys who would know how to comply with such detailed requirements.

In a second case, pending before the MSPB, a hearing officer found an employee’s disclosures to be not protected on grounds that he was motivated by “interpersonal squabbling,” not desire to reveal wrongdoing, the OSC recounted. It is arguing before the MSPB that under the 2012 Whistleblower Protection Enhancement Act, disclosures “are not to be excluded from protection based on a whistleblower’s motive.”